The issues surrounding the FISA legislation are still roiling in Congress, thanks to the sudden appearance of a spine and principle by the Democrats in the House of Representatives (and correspondingly, with no thanks to the spineless and craven counterparts in the Senate, especially Jello Jay Rockefeller, the SSCI, and Harry Reid for bringing the horrid Intel committee bill to the floor instead of the far superior Judiciary bill). The most contentious issue has been, and continues to be, the proposed retroactive immunity for telco companies. Since the ugly head of the issue was first raised last summer with the railroaded passage of the Protect America Act, I have been arguing vehemently that the telcos are not in any grave danger financially from the civil suits currently pending. If their conduct is as has been described to date, they are already protected from liability for the actions that have been described, both by existing statutory immunity and by a right to indemnification from the government. The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

This post will go back over some of the basis for my argument that has been laid out previously, both here at Emptywheel and, earlier, at The Next Hurrah. I will also try to relate a few basics on what the general concept of indemnification is, and how it relates to contracts, in this case the agreements between the telcos and the Bush Administration. I have been making this argument for quite some time now, since last August, and have yet to have anybody put a significant dent in it; but it is no good if it cannot hold up to scrutiny. In that regard, I have posited my theory to several other lawyers expert in the field of governmental/Fourth Amendment litigation, including some extremely knowledgeable on the very civil suits at issue here, and all have agreed with the validity of my premise.

The Argument: The Bush Administration, with the help of telco providers (telelphone, cellphone, internet and other communication providers) engaged in massive wiretapping and datamining efforts, ostensibly to protect the United States from attack by terrorists. The legality of much of these programs has been questioned in many fora, but the germane ones for the immunity demand by the Administration are the civil suits that have been filed against both the telcos and the government that are currently pending in Federal courts. There are a handful of different suits out there (40 is a number that has been used, but some have been consolidated); the best known are the Hepting v. AT&T case being prosecuted by the EFF and the al-Haramain case. Under both traditional tort theories, as well as specific statutory provisions under FISA and related statutes, monetary damages are sought by the plaintiffs. These suits are not just critical for the individual plaintiffs, but due to the refusal of the Bush Administration to be honest and forthright about what spying they are doing on the American public, and the refusal of Congress to demand answers and accountability on the same, the civil suits are pretty much the only vehicle that the American public, and posterity, have for finding the truth about what has been both done to them and in their name. The Administration now, of course, wants to close off this avenue of discovery and accountability for their nefarious actions through the immunization of the telcos for their acts (which would result in dismissal of the civil suits).

First off, lets be honest; you don’t need immunity for legal and proper conduct. In this regard, telcos are already specifically protected and "immunized" from liability for anything they did that was even remotely legal and performed under the broad provisions of FISA (50 USC 1801 et. seq.), the general criminal wiretapping statutes (18 USC 2510 et. seq., specifically 18 USC 2520), the Communications Act (47 USC et. seq., specifically 47 USC 605) and the Stored Communications Act (18 USC 2701 et. seq., specifically 18 USC 2707 and 2712). There is already, by existing law, no liability for any conduct undertaken, by either the telcos or the government, in compliance with these statutes. So, make no mistake about it, it is blatantly illegal behavior (and NOT good faith legal behavior), performed at the Bush Administration’s demand and direction, for which the immunity is being sought.

Okay, but many, including, seemingly, members of the SSCI and witnesses (see here and here) argue that the telcos were not operating under statutory "safe harbor" provisions as described in the last paragraph. So, what if the telcos engaged in behavior outside of said "safe harbor" statutory provisions that turned out to be illegal behavior, but did so in response to to heated demands from the Bush Administration, and with assurances by the Administration that there was a legal basis and dire necessity; shouldn’t they be entitled to immunity from massive civil liability damages for that conduct? No; that is where the indemnification portion of the argument kicks in. Indemnification is the act of supplying indemnity in a contract:

An indemnity contract arises when one individual takes on the obligation to pay for any loss or damage that has been or might be incurred by another individual. The right to indemnity and the duty to indemnify ordinarily stem from a contractual agreement, which generally protects against liability, loss, or damage.

It is my contention that the telcos have just such indemnification agreements with the Administration/government, that we do not know about because they are classified and hidden, that so protect them for any liability and losses resulting from the litigation they are faced with; thus they do not need immunity to protect them from potential liability verdicts, they are already covered. Telcos have some of the best attorneys and legal departments in the world, and they also recruit heavily from the upper echelons of the Department of Justice (see, for instance: William Barr and Peter Keisler, who is now, of course, conveniently back in the DOJ leadership). Simply put, telco legal departments are huge, experienced, and cutthroat competent. They did not fall off the turnip truck last night, nor any other night; and they have been dealing with wiretapping issues for law enforcement and national security concerns since the telephone came into use. As someone that has had dealings with such entities regarding bad/illegal wiretaps, I can attest that they always protect themselves vis a vis the governmental entity they are working for and are not shy about the use of indemnity provisions.

Okay, but is there any basis for the Administration having given such an indemnification agreement to the telcos in such an unusual national security scenario and with such massive potential exposure? Yes, indeed that is exactly where such agreements are contemplated (see, also, here). As a perusal of the links will exhibit, the President has the authority under 50 USC 1431 et seq. to authorize exactly the type of immunity agreements that are described herein, and, furthermore, to promulgate specific rules (including secrecy and classification, see 50 USC 1433) for their implementation. Now, it should be noted that one of the provisions of 50 USC 1431 is notification of Congress, specifically the respective Armed Services Committees, if the amount in question exceeds 25 million dollars. It will be interesting to see if this was, in fact, done or if the Administration disingenuously took the position that there was not yet an amount in controversy because there was not yet any known or set amount of indemnified liability (which is my bet under both a reading of 1431 and 1432(f)) and has kept this under their belt with the exception of limited disclosure to the Gang of Four/Gang of Eight as discussed here. In either case, this is potentially an explanation for why even the Democratic Congressional leadership has been compliant in ramming through passage of immunity; they don’t want the public to find out that they signed off on massive liability to be paid out of taxpayer’s pockets.

What if the telcos failed to get such indemnification agreements, or alternatively, they did but the agreements were informal or the government refused to honor them? For the reasons stated above, this is next to impossible to believe; the telcos and their legal departments are simply too tough, experienced and savvy to not have covered themselves. In the unlikely event this did turn out to be the case, however, the telcos still have the right to file a claim against the government for their losses incurred as a result of good faith reliance on the Administration’s assertions and demands. Such a claim would most likely be brought pursuant to the Tucker Act as it would arise pursuant to contract or quasi-contract; although a creative litigator could surely plead other conceivable bases as well.

Conclusion: For the foregoing reasons, the telcos are already protected by the immunity of existing statutory safe harbor provisions for legal conduct requested by the Administration and will have indemnity for other acts demanded by the Administration. I respectfully submit that the telcos are already sufficiently protected from the Spectre (some pun intended) of massive financial peril of the existing civil lawsuits; and that the only real reason for the desperate push for immunity is panic among Administration officials that their craven illegality will be exposed and they will be held to account. We now know for a fact, that which we have always suspected, thanks to Mike McConnell, namely that the entire belligerent push for FISA reform is all about immunity, and not about what George Bush would call "protectun Amarikuh".

The minor issues with FISA that need tweaking could have been easily accomplished and, indeed, Congress offered long ago to work with them to do just that; but, of course, were belligerently spurned because, as Dick Cheney famously bellowed, "We believe… that we have all the legal authority we need". This furious push has been about immunity, from the start, to prevent discovery of the Administration’s blatant and unconscionable criminal activity. The House of Representatives, and the cave-in Administration cover-up specialists in the Senate as well, should take a long, hard look at what is really going on here and steadfastly refuse the Administration’s self serving craven grab for the cover of telco immunity.

One last point. In addition to the foregoing, there is an extremely good case to be made that the granting of retroactive immunity to the telcos would comprise an improper and unjust taking of the existing plaintiffs’ right to compensation under the Fifth Amendment and would, therefore, be in direct violation of the Constitution. I don’t want to belabor this thought; just put it out there so that it is considered in the mix. Hey, "Teh Google" is a most marvelous thing; here is an absolutely outstanding discussion of this issue by Professor Anthony J. Sebok of the Cardozo School of Law.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2008-02-18 17:19:252008-02-18 17:19:25Don't Cry For The Telcos - Bush & Cheney Are The Only Ones That Are Dying For Immunity

About 9 AM 1/20/09, could President Bush pardon Dick Cheney for any crimes committed against the United States since 1/20/01; then resign, to have President Cheney issue the same pardon to one George W. Bush?

The pardon powers granted to the President under Article II of the Constitution are plenary and effectively unlimited; so, theoretically, your scenario is possible I suppose. The only limits given in the Constitution are that pardons are limited to offenses against the United States (i.e., not civil or state cases), and that they cannot abrogate an impeachment process or conviction.

It is my understanding that yes, one can be impeached after leaving office. The motivation is to remove federal benefits and attainment of any further federal positions (i.e. stuff like federal judgeships upto and including the Supreme Court etc.).

The ITT flap 30+ years ago was the genesis of FISA, and as per the
description of the legal departments as cutthroat competent, the FISA
system was a joint product designed to solve any problems with illegality
and empower wiretapping under the aegis of law. Logic of this leaves
the conclusion you posit as the only viable reason for all the fizz
from the administration… we already have legal star chamber proceedings
but, like Johnny Rocco, they want more, yeah, more, Rocco wants more!

The full court press for immunity by the Administration is entirely about cover for the lawless Bush Administration, and not about the impending financial demise of the telcos.

one additional issue you do not discuss, but i’m curious for your take – if the telcos acted in violation of their own TOS with regard to protecting the privacy of their customers, could there be any liability for that?

Eh, I don’t know, I think liability is liability on this; if it was legal conduct, they are going to be insulated by the overriding governmental necessity of compliance, if not legal conduct then all the liability is in the same boat I described in the post.

i was thinking that the standard for “legal” (immune from prosecution for fisa violation) was a different standard from “necessity of compliance” – after all, it does appear that not all telcos “complied” (at least initially) and i’m unaware of any legal action to force compliance (not including punitive prosecution for unrelated activities – see quest).

if bushco couldn’t force compliance by standard “within fisa” process – than how was there a “necessity of compliance”?

I agree they did get some kind of indemnification agreement. But boy oh boy would I love to see them try to collect upon it. First, getting past classification issues for the agreement. Then, you have the old case where the spy’s wife tried to enforce a contract against the gov (Totten?) and, in a case that may have troubled the telecoms more, a 2005 case that kind of held the same way:

A contractual agreement between the government and one of its spies is unenforceable in federal court because of the “absolute secrecy” the government needs for its espionage activities, the Supreme Court ruled unanimously on Wednesday.

On top of the spying issue, you have the general unenforceablity of contracts to commit or cover up crimes, and the public policy interests of contracts to indemnify for crimnal behaviour.

I’m guessing all of the above and more have the telecoms, even if they have something, nervous. Amnesty is so much cheaper and easier for everyone, eh?

I agree on the taking argument and I also think that there has to be a question about whether and to what extent Congress can insulate Executive Branch actors from violation of the Bill of Rights (FISA maybe, but if the searches violated the 4th …) by giving a blanket amnesty. That would make the protections of the 4th amendment illusory (if there is no remedy, there is no right) and would also seem to me to be completely ultra vires – Congress is only empowered to to override the Constitution through instituting the amendment process, not by collaborating with the Executive Branch to just engage in immunized violation of the Constitution whenever and however they please.

1 – they’d have to specify the acts being pardoned. And that would raise some interesting issues, wouldn’t it? Imagine if you forgot about the hypothermia death here, the child napping there, etc. And the civil remedies available to victims can’t be pardoned nor can state law crimes. With the warrantless wiretaps, I believe a chunk of the pending lawsuits deal with violation of state privacy statutes as well.

Nice post bmaz. Good stuff – if you get the chance and haven’t already cruised through it, the Frontline collection has some good stuff too.

Ah, but suppose the collection mechanism was stipulated to not need court enforcement; i.e. some type of liquidated damages provision where the government simply agreed to cover that which was found by verdict and attorney fees by the trial court? That is one thought I have always had….

Nice post. So are you saying that if the new legislation provided government indemnification to the telcos rather than immunity, you wouldn’t have any objection to it, on the basis that they already have indemnification? That would that refute the government arguments that the telcos are seriously financially threatened by the lack of immunity and won’t cooperate in the future.

Yeah, I would agree with that. I don’t think Congress can pass that in the open though, because the liability potential is massive. The AT&T (Hepting) case, at a minimum, and others as well i think, are filed as class actions; so if each customer has a claim for each instance (and as Mary observed above the requirements under the FISA liability are particularly onerous), the liability is HUGE. These Congressional clucks can’t publicly contemplate a freaking minor tax increase out of fear; how are they going to explain this?

Well how about if the plaintiffs limited their claim to, say, $10 million. As I understand it, these particular plaintiffs are not looking for a huge financial windfall but rather for transparency. IANAL (obviously) and perhaps, if the plaintiffs did this, the telcos could simply settle the case for $10 million.

I assume one can be prosecuted after one leaves office for crimes committed while in office – if the statute of limitations has not run out. Correct?

Presumably there are no limitations on war crimes. But FISA, does one start counting from 02/01? Have they run out the limitations on that? Or since it is on going does every last instance count? So I get a new phone, they tap it and FISA penalties kick in, right? Or are we talking “standing” here, where I have to prove that tapping my new phone damaged me before my case can be heard in court?

“1 – they’d have to specify the acts being pardoned. And that would raise some interesting issues, wouldn’t it?“

Well, not always:

Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

4 – If there were a valid court order or a valid administrative order, that would likely trump the TOS (you see those kind of “govt compliance” outs spelled out in lots of contracts, but they are also implied into most), but if there is no valid or good faith believed to be valid order, then there is more of an issue. But once Congress basically finds – which is going to be implicit or explicit, depending on its language and legislative history when the amnesty is passed, that there WAS a good faith belief that they had a valid administrative order, then that will make the individual contract actions almost impossible to do anything about IMO.

The reason I think FISA liability is so important to them is that it exists for violations without plaintiffs having to prove damages – it is statutory damages and that gets around a whole host of issues for plaintiffs. As a matter of fact, it was intended to get around a whole host of issues for plaintiffs and put some teeth and growl into the statute, given the secrecy and non-advocacy of the proceedings in FISC and the secrecy of a telecoms taps in general.

4 – If there were a valid court order or a valid administrative order, that would likely trump the TOS (you see those kind of “govt compliance” outs spelled out in lots of contracts, but they are also implied into most), but if there is no valid or good faith believed to be valid order, then there is more of an issue. But once Congress basically finds – which is going to be implicit or explicit, depending on its language and legislative history when the amnesty is passed, that there WAS a good faith belief that they had a valid administrative order, then that will make the individual contract actions almost impossible to do anything about IMO.

well, maybe there was reason to believe the “good faith” argument for 2001. but was there “good faith” belief that they had a valid administrative order two years ago (winter of 2006, after the story broke)? i’m inclined to doubt it… because 2 years ago my TOS said “Unless required by law,” and still does (my bold). and just over two years ago i spent a number of frustrating hours talking to a bunch of people at my ISP – and the response i got was not the response of either an innocent bystander OR a company that believed they were doing the right thing (and btw, i’ve got a bunch of it in writing from them) except at the very lowest levels.

I’ve not seen if this point has been addressed elsewhere (and I’ve not been everywhere *g*), but can you legal eagles describe with specificity, just what are the Statute of Limitations regarding this Administration’s crimes vis a vis warrantless surveillance and 4th Amendment violations?

I suppose one would have to itemize each and every law these fookers broke, but please, have at it!

I’d like this because I want it to buttress the point that Junya and Deadeye are not home free after leaving office (sans the pardon shenanigans of course, that ProfessorFoland questions in comment #1).

That is a complicated and difficult question on a lot of fronts. First off, as you recognize, is the issue of which crimes we are talking about and when were they committed. But additionally, there is a question of whether the statute of limitations was tolled, or stopped/delayed/extended during the time these people were in office and actively concealing their crimes as well); this would be an especially cogent question as to Bush because he is immune to criminal charges while in office. Also, I believe a cagey prosecutor could get at these clucks under a continuing conspiracy theory with the coverup. Too much to consider at this point….

bmaz, thanks for this perspective, even someone with a very, very limited legal background (me, okay..) can understand and appreciate your argument.

This part was particularly interesting;

“An indemnity contract arises when one individual takes on the obligation to pay for any loss or damage that has been or might be incurred by another individual. The right to indemnity and the duty to indemnify ordinarily stem from a contractual agreement, which generally protects against liability, loss, or damage.”

I believe what you say regarding an “indeminity agreement”. There is still a good chance that this agreement was not processed through the normal channels (okay’d by congress)because of Bushco’s apparent tendency to cut corners on almost everything they touch. The part of the “good faith reliance” is the angle I probably agree with most because I believe the teleco’s are probably very concerned with the way this whole event has been handled. So concerned I wouldn’t be surprised that their legal team probably conjured this retroactive immunity to shield the white house (primarily) and themselves too.

Yes, I think we’ll need a special Pardon Watch over the last six months of the Thousand Year reign of Cheney/Bush.

First, the pardon office and its normal procedures have been gutted as cleanly as Addington/Ashcroft/Gonzales/Mukasey have gutted the DOJ’s procedures and corrupted its staff (eg, Bradbury at Main Justice, USA Alice Martin in Alabama). Second, we are likely to see all sorts of people, some we’ve never heard of, pardoned under vague but all inclusive language that reveals none of the behavior requiring excuse.

Third, since the president’s pardon power is so extensive – though it does not reach to breaches of state law, eg, murder, or to private wrongs like torts – I envision Addington developing a secret “pardon list”. How the latter would work – it would presumably be a state secret – would be another lasting corruption from Dick and Dubya.

It seems to me that one means of assessing the premise of your argument is to find out how much money the telecoms lobby is spending in support of immunity. I’ve gotten the impression that they’re spending quite heavily. Why would that be, if they didn’t feel particularly vulnerable?

While the order directly involves 17 such lawsuits, the panel noted that there are 26 other cases pending in 18 federal districts. It said thsoe “will be treated as potential tag-along actions” to the consolidated group before Judge Walker. Under panel rules, a “tag-along” action is one that raises common issues of fact as in the transferred cases; those cases can be passed along to the chosen forum.

AFAIK, all of the suits are or will be consolidated. Defendant Telco/NSA/etc. calls for removal to federal court, and there is a standing multi-district order that can put the case in Judge Walker’s hands. The underlying legal inquiries in all the cases have a common nexus, although individual cases or issues can be peeled off and handled separately (e.g., al Haramin being denied the opportunity to present its memory of the NSA order, on state secret grounds)

– if the telcos acted in violation of their own TOS with regard to protecting the privacy of their customers, could there be any liability for that? –

There are many signals that the push for immunity is based on something other than what its proponents claim. For one thing, they haven’t mounted a coherent argument, i.e., where all of the proponents sing the same tune.

DNI McConnell, just this past Sunday, said the PAA extension, or similar, is needed because it has the power to compel — but previously said that immunity is needed in order to obtain cooperation.

On the issue of money damages, some are talking damages in the billions, others (e.g., Senator Bond) are saying the plaintiffs can’t win anyway, so there is no risk of damages. I tend to agree with the “no damages” side of this, at least not to individual plaintiffs. There may be state-imposed fines for making materially false statements.

On the issue of disclosing state secret, one (such as a judge in a court) could take the statements made in the SSCI report that describe the authorization letters in general, but in enough detail to make a finding as to conformity with statutory law. In other words, the legal conclusions can be probed without disclosing more than has already been disclosed.

But even without continuing the litigation, anybody with half a brain has a take-away right now. The government is LYING when it says it is protective of privacy.

Plus the fact that Bush won’t let the telecoms talk to COngress. Commerce in the House hasn’t talked to them at all; I THINK Haggis has spoken to them, and I think they implied that substitution would be fine.

And to extend that “government is lying” thought, the statutes that appear to protect privacy? LOL. Phantom protection. Either waived via immunity, or construed out of existence by court interpretation of statutory language, or somehow rendered without force by assertions of state secret, etc.

It’s not just this administration, it’s the whole lot of ‘em sitting there in Washington DC. They don’t trust the public with privacy.

Great post!!! Thank you for addressing the level of legal expertise within the telecom industry. I know we have had this discussion in the threads in the past… I like how you use it to make several points about what one can assume and not assume on liability concerns…

I think what stands out to me about the difference between the “pro retroactive immunity” vs. no immunity arguments would be this simple point:

Those in support of the president are inconsistent in their arguments regarding the need(s) for immunity. Those arguing against immunity are extremely consistent in their arguments. The “no immunity” talking points NEVER change (and never play the fear card). Over simplification? Maybe.

A winning position is a solid one. An insipid one equals trying to CYA…The excuses are endless.

Like cbolt wrote…The government is LYING when it says it is protective of privacy.

It is hard to overstate how much of a priority FISA immunity is for the Bush White House, and for obvious reasons. Ironically, they were actually proposing the same sweeping retroactive immunity language back in September of 2006 when the Republicans controlled both houses of Congress, but they could not get the Congress to pass FISA legislation.

I’ve brought this up in the past as an idea. Would you and FDL be able to offer a print option on posts like these — that clearly explain an issue which we need to get the word out on? Otherwise, I copy and paste or just print and sometimes end up with ads printing that I would prefer to not be a source of distraction to a reader.

My parents would rather read a hard copy of something than read on the computer because it is easier on their eyes.

Additionally, it would give me great hard copy info to head out on foot for grassroots efforts where I cannot do netroots efforts. I’ve often written there has to be a conversion of grassroots methods with netroots methods.

This would just serve as a great piece (along with some of Christy’s posts) to print off along with some sample paragraphs of speaking points against immunity for letter writing content.

Like you, I sometimes copy and paste a blog post into and MS Word file to save it for future reference. I find that when I do so I use the Edit/Paste Special/Unformatted Text alternative from the tool bar instead of the just plain “Paste”, it doesn’t drag along unwanted graphics, ads, etc. Of course, if you want it to print looking nice, with an emboldened title and/or other embellishments, you have to do some formatting, which can be a pain. (Don’t get me started on how pathetic MSW is in comparison to the old WordPerfect.)

It just seems a “win-win” when a site has a print icon for a printable version. The site gets hard copy recognition (logo and site address) and the reader gets a clean hard copy (sans ads -especially those google ads that come up for McCain!).

I’ve been pushing for a side text box on both sites regarding issues. A box where people can go and print off media tools for addressing issues to Congress. Something like EW’s timeline box but containing printable items people could go to for grassroots media tools. When I talk with a friend or family member about an issue, I never forget to leave them with something to read, some highlighted references that would make good content in a letter to their reps and the addresses of their reps.

Marci, this is the very reason that I and many others love to read your posts. You can connect with everyone and make it so easy for those of us who might otherwise be considered less than “the brightest of the bunch” to understand. Thank you.

Yeah, well, I don’t know about my legal chops; they are a bit rusty (pork chops may be more my speed). However, my main desire here was to get this concept out of the comments section and out on a front page where the whole world could take a whack at it. The closest thing to a hit remains Mary’s argument that telcos might have a hard time enforcing it all bit. While I agree that could present potential issues under certain scenarios, there was no perfect answer for them – they did the best they could and have as much or more protection already as they are/were entitled to. I don’t think it under cuts at all the logic of the concept, namely that the telcos have plenty of protection for any legal and/or reasonably good faith acts and, therefore, immunity is a wrongheaded concept that only serves to conceal criminal activity perpetrated by the Bush Administration.

SO, HAPPY CAMPERS, FRIENDS AND FAMILY – Please help me get this out to all points. Immunity is still up in the air in Congress, especially the House. the Senate and the white House are diligently working as we speak to ram immunity the final distance down out throats. Serious questions about indemnification agreements need to be understood, be asked and be answered by and in congress before they go further. I am pretty sure that the answers would open a whole lot of eyes and blow more than a few minds. To date, the only real discussion of this key area has been right here. Time to take this car out of the garage and drive it around before it is too late. I need your help in doing that. To date, this area has not been discussed by a single congresscritter (save for Specter talking about his future amendment). That has to change.

Wilson’s H.R.5825 was passed by the House in September 2006. Neither it, nor any aspect of the House reports, nor any discussion from the floor of the House, indicates any concern whatsoever about “retroactive immunity” or “protection for the telecoms” for past actions.

The Senate received the bill on September 29, 2006. The GOP-lead Senate took NO action beyond referring the bill to the SJC.

H.R.5825 Passed the House in late September 2006. The GOP-lead Senate sat on the bill. So much for “urgent need.”

Interestingly, the same “foreign-to-foreign” argument appears in the debate in 2006, as became prominent in August, 2007. IOW, the “foreign to foreign” gap was UNACTED ON by Congress, from 2006 until August 2007. Yet, with this statutory gap, the frequency and urgency of call for revision was, umm, well, nobody in the WH was complaining.

12 – there sure isn’t anything to prevent voluntary compliance by gov, but then you run into the biggest elephant in the room – who will be the President if and when the awards are made? That probably is partly driving the timing on a lot of this – the worry that someone like an Obama wouldn’t necessarily give free passes, wouldn’t necessarily cooperate with a covert agreement that had not been noticed to Congress, etc.

20 (like the name btw) – I didn’t go into enough detail – sorry. Even if unspecified crimes are pardoned, if they are of a serious and possibly ongoing nature, crimes relating to conspiracy and obstruction become new again, starting immediately after the pardon. To be honest, I can almost see Bush and Cheney just really calling the bluffs and not even bothering with pardons. Is anyone, anywhere, going to do anything about their crimes? I’ve seen nothing in McCain, Clinton (who would have some related challenges going back to Bill’s administration) or Obama to indicate that they will do anything other than run away from the issue and have a AG who will run away from the issue. They have all been part of the Congress we’ve had the last 7 years and none have even been leaders on any of the few, small, faint initiatives that were started.

Which goes a bit to 23 “assume one can be prosecuted after one leaves office for crimes committed while in office” and the fact that, while I agree, there is a theory that a President has absolute immunity for acts done as President, with impeachment being the only remedy for Presidential acts.

Impeachment, btw, being “off the table” (can you imagine the inane and wanton disregard for Congress held by its own members when the Speaker says impeachment – no matter what is done – will never take place?).

28 – I just wonder if a large part of the reconciling factor isn’t what Mad Dog referenced before about the fact that if data mining is being done, they are very likely having the telecoms do that mining, using the telecoms own proprietary information. That’s why I drew the Saudi/BAE analogy. If you don’t give us immunity (and NOW, before a Democrat is in office who may go snooping through what we have actually done) then we won’t do your data mining for you and you can’t “order” us to do the progressive sifting you need, bc the real time aspects of response are dependent on what the sifts find and your order will never be that detailed – plus you are then not ordering us to give you access, you are ordering us to do the invasive operations ourself.
? At thougth anyway.

On the damages front, I think, again, it might relate to what happens at the presidential level. If state secrets is withdrawn and/or FOIA releases are given to let people know whether or not they were impacted, then the things that kept the cases from going forward change dramatically. Especially some of the state law violation suits by state AGs.

Still, with the cast of possibles in the Presidential race, I just don’t see it happening. I do find it interesting, though, that given the mulitnational character of the companies involved, no one ever mentions what damages or criminal ations they might face in other countries for handing over, wholesale, all communications of all private citizens of those countries to a foreign nation without warrant requests.

And on the lying front (btw, the 6th Cir lack of standing case got denied cert today) I don’t think I’ll ever see anything as shameful (or please God, that I don’t) as the lower courts and Sup Ct’s treatment of the el-Masri case. Angela Merkel walks out to a massive international press conference and chirps away about Rice admitting to the kidnap and abuse of el-Masri, and yet no court will give redress, the Sup Ct turns its back and gives a thumbs up to the power of a President of the United State of America to wander aimlessly through the world, plucking torture victims up at will and on whim, with no recourse.

On Friday 2/15/08, DNI McConnell published an oped in the Washington Post and appeared on NPR. He told WaPo readers that:

Some have claimed that expiration of the Protect America Act would not significantly affect our operations. Such claims are not supported by the facts. We are already losing capability due to the failure to address liability protection. Without the act in place, vital programs would be plunged into uncertainty and delay, and capabilities would continue to decline.

Huh? With the PAA in place we are “losing capability” and without the act in place “capabilities would continue to decline.” What part of “not significantly affect” does our DNI not understand.

McConnell went on to tell NPR listeners:

… However, that’s not the real issue. The issue is liability protection for the private sector. We can’t do this mission without their help. Currently there is no retroactive liability protection for them. They’re being sued for billions of dollars.

So the board fiduciary responsibilities cause them to be less cooperative. So in the current bill – in the current law which is on the books today – there is no protection for them. If it expired, of course, there’s no protection. And even if you extended the current bill, there’s no protection in a retroactive sense.
…
[T]he Senate committee that passed the bill examined in close detail all the activities and concluded there was no violation of law. And, in fact, we need their help for success to protect the country.

So, the “real issue” and the reason our capabilities were declining under the PAA and will continue to decline in its absence is that the “fiduciary responsibilities” of telco boards of directors cause them “to be less cooperative” in the absence of retroactive immunity. In other words, the telcos are holding their cooperation hostage, blackmailing the Bush administration retroactive immunity.

Per Glenn Greenwald, longstanding FISA legislation obligates the telcos to cooperate with governmental requests for LEGITIMATE assistance and, per bmaz, immunizes them against any resulting liability. So, the real security problem is that Bush has allowed the telcos to illegally withhold their assistance. Obviously, giving them retroactive immunity for past transgressions would embolden them, thus making us even less secure. It’s obviously high time they get treated with tough love.

Exactly; and even above that, I would assert that the real hold up (if indeed there is one at all) is that the telcos are no longer convinced that the Administration can cover it’s illegal behavior. If there is any “hostage taking” here, is is entirely due to the compromised position the criminal acts of the Bush Administration have d placed the government in. The answer is NOT to cover up and reward such behavior.

One other vital point: The claim that telecoms will cease to cooperate without retroactive immunity is deeply dishonest on multiple levels, but the dishonesty is most easily understood when one realizes that, under the law, telecoms are required to cooperate with legal requests from the government. They don’t have the option to “refuse.” Without amnesty, telecoms will be reluctant in the future to break the law again, which we should want. But there is no risk that they will refuse requests to cooperate with legal surveillance, particularly since they are legally obligated to cooperate in those circumstances. The claim the telcoms will cease to cooperate with surveillance requests is pure fear-mongering, and is purely dishonest

And as you point out, the telcos have immunity for any legitimate cooperation and likely have been indemnified for non-legitimate cooperation. Presumably, they could be even be given retroactive indemnification. (In fact, Feinstein was proposing something like that.) But, retroactive indemnification would not achieve the real purpose of the proposed retroactive immunity, namely to prevent BushCo’s misdeeds from coming out at trial.

There is no question but that they can be compelled to assist a lawful request; to suggest otherwise is pure GOP bunk. This has been long written in the law; there are even prescribed compensation provisions for the cooperation.

Thought it dovetailed with your comment so I shared it. I am not sure where they are getting their information.

I think Greenwald is just making shit up. I have no idea where he came up with “the administration was seeking retroactive immunity in September 2006,” but I don’t fault people for reading and/or repeating what he posts.

I was following FISA, Military Commissions, and Interrogation issues for all of 2006, including considerable time invested in reading proposed legislation, debates in Congress, and so forth. I listed all of the FISA proposals from 2006 above (I have a similar and deeper list for proposed Military Commissions legislation, but that’s a different issue).

Greeenwald could provide a citation for his contention, if he had one and wanted to. I looked for support, including a fresh review and extended search, and the oldest request for retroactive protection for telecoms that I was able to find is dated around April 10, 2007.

Listen, I absolutely love the EFF. I have talked to them several times, and even passed on some fairly useful information (at least in my opinion) at the time of the oral arguments in the 9thCCA last summer. You can’t find more admirable nor better folks. But that is a fundraising ploy. I have found nothing that indicates any huge lobbying push on this issue. Nothing. In fact, look at this data chart that actually came from one of their links. telco campaign contributions are DOWN. Do the telcos have lobbyists lobbying? Sure; they always do. But look at the chart I cited and then think about what occurred when the telcos wanted in on the cable game and other big things they wanted. There were HUGE lobbying efforts down to the grassroots and slick ads on TV and everything. Not here. They are going through the motions like a good partner and like the Administration asks them to; but the telcos are making no panicked push on their own, it is ALL the Administration.

I’ll be damned. I guess I forgot about there being such a provision; I do remember wilson making a proposal, but didn’t recall that. Irrespective of that early incarnation, however, there was no mad rush prior to the summer of 2007. I think what was a convenient concept for them became a glaring necessity as time went by.

By golly, there it is, under a title “COMPLIANCE WITH COURT ORDERS AND ANTITERRORISM PROGRAMS” A couple of different versions. One as a Section 11, reported out of Committee, another as passed by the House, and another as received in the Senate. Link to all four versions of the House Bill.

This section would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The amendment applies to all pending and future cases, and allows all such cases to be removed to Federal court. The amendment also applies the old definition of `electronic surveillance’ contained in FISA prior to enactment of the Act.

The amendment of HR 5825, to include retroactive immunity for telcos, was printed on Sept. 25, 2006. Passage of HR 5825 by the House was on Sept 28th. The amendment was presented by Rep. Cannon on September 20th.

ROLLCALL NO. 13–DATE: 9-20-06 [In House Committee on Judiciary]

SUBJECT: Mr. Cannon offered an amendment to H.R. 5825, which was agreed to by a rollcall vote of 22 ayes to 16 nays [Pure Party-line vote]. This amendment would limit the civil and criminal liability of telecommunications carriers for any activity arising from, or relating to, any alleged intelligence program involving electronic surveillance that the government has certified is, was, or would be intended to protect the United States from a terrorist attack. The amendment applies to all pending and future cases, and allows all such cases to be removed to Federal court. The amendment also applies the old definition of `electronic surveillance’ contained in FISA prior to enactment of the Act.

Senate action on the Military Commissions (and FISA) was started under several bill numbers, S.3929, S.3930, and S.3931. 3930 was “just MCA” and was passed. 3931 was “just FISA” and went nowhere. 3929 was 3930 & 3931, concatenated/combined. All three Senate bills were introduced on September 22nd. S.3930 passed the Senate on September 28th. IIRC, Frist and McConnell were making noises about the MCA bill at least a few days before the trio of bills was introduced. All the language in those bills emanated from the WH.

I knew you would both get to it. It’s worth looking at this wording to compare with current wording. I’m doing that now– but I do not have the legal “chops” to dissect to the total impact of similarities and differences. The mark ups and changes are curious too…

Next time, I’ll remember to link right from the start and save us all the stress…It’s just difficult sometimes with sick kids and multi-tasking…

The language of that section was inserted at the last minute, by Rep CANON.

The language that I offered at the Judiciary Committee and is included in the Substitute Amendment does not delve into the Constitutional relationship between the Congress and the Executive.

The language deals with an issue of fairness.

It deals with the issue of whether individuals or companies that comply with government orders are liable to third parties for following these orders.

The purpose of this language is to eliminate the 60 plus lawsuits that have been filed because companies complied with government orders.

Absent an effective immunity provision that allows a company to avoid these legal quagmires, an individual or company will be reluctant to cooperate with any authorized government surveillance program and that will severely undercut this country’s terror-fighting capabilities and the safety of our constituents.

Should these claims proceed to judgment, the financial liabilities could add up to hundreds of billions of dollars–enough to destroy any industry.

Although I do not believe the suits will succeed the defense costs alone will be considerable.

But what is worse is the chilling effect on compliance for future requests.

If this is what was offered during a Rep dominated House and Senate and it did not resolve into FISA updates…

What makes this issue so much more important to the Republicans NOW? (I know the answer but…) My point is if you can follow the bread crumbs that are on record from this point (2006) to the present Reps standing their ground on this, there may be some answers “in print.” I was also going to look at how everyone voted. (cboldt, you have probably gone there by now) Are there any who voted against this who are now all pro retro immunity? If so, they need to be pointed out…Same for any Dems – are there any who were there in 2006 who did not support it but have switched? They need to explain why.

Anyway, thanks for “hanging” with me on this. I find it a hidden gem of sorts for our current drive against immunity.

I have not come across veto threats from the president during this 2006 round of legislation on immunity…I may be missing such “fear cards” of the past…

My guess is that such threats weren’t required as long as the GOP had control of the legislative agenda, including which amendments would be permitted to be debated, etc. Although I vaguely recall the meetings with McCain and Warner including something that amounted to a veto threat of S.3901, at least on the definition of torture / cruel and inhuman.

The Bush administration in recent days has been lobbying to block legislation supported by Republican senators that would bar the U.S. military from engaging in “cruel, inhuman or degrading treatment” of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual.

Vice President Cheney met Thursday evening with three senior Republican members of the Senate Armed Services Committee to press the administration’s case that legislation on these matters would usurp the president’s authority and — in the words of a White House official — interfere with his ability “to protect Americans effectively from terrorist attack.”

That same battle continued through September 2006, when the Whitehouse negotiated some BS statutory arrangement where cruel and degrading treatment would be illegal but not punishable. McCain and Warner fell in line.

A quick back view to FISA too … now that I’m looking at WH policy statements from the era:

Sept 28, 2006 – Re: H.R.5825: The Administration strongly supports prompt enactment of legislation to: (1) provide additional statutory authority for the Terrorist Surveillance Program; (2) modernize the Foreign Intelligence Surveillance Act of 1978 (FISA) in light of changes in communications technology and the War on Terror; and (3) effectively protect cooperating private sector entities and U.S. personnel from liability as they carry out authorized and lawful U.S. communications intelligence activities to protect against terrorism. Accordingly, the Administration strongly supports House passage of H.R. 5825 as amended, and looks forward to working with Congress to strengthen the bill as it moves through the legislative process.

Of course, back in 2006, Cheney was still gruffing that they had all the authority they needed and didn’t particularly need any help from Congress. This is from February, but I kind of recall, I think, him taking the same belligerent position up until spring to summer of 2007.

I was also going to look at how everyone voted. (cboldt, you have probably gone there by now) Are there any who voted against this who are now all pro retro immunity?

I haven’t done a vote check, but there’s nothing in the House action that permits separating a vote on immunity from a vote on the bill as a whole. There was a motion to recommit (it failed) and a vote on final passage (the bill passed, including retroactive immunity).

The Debate of Sept 28, 2006 discloses a hurried and “jammed” action, with no opportunity for amendment. The bill was passed on a “take it or leave it” basis, with the text of the bill being “as amended” by a House Committee member. Rep CANNON, in an *inserted* remark, indicates that he was the conduit for the retroactive immunity language. Wilson’s original presentation of the bill, in July, does not have those clauses.

The debate is varied, mostly on the surveillance aspects with only a few remarks about the retroactive immunity aspect. I haven’t read all of the debate yet, or the material in “extended remarks.”

They are paranoid of having the issue of immunity delved into for exactly the reasons we have been discussing here. I think that is one of the reasons this is always “jammed” as you say. The way they have gone about this is akin to a diocese hearing rumors and tales of all kinds of improprieties by a priest, and then, without finding out exactly what he did, who he molested, and how many times he did it, giving him a clean bill of health and putting back out in the congregation to administer the kids program. This thing stinks and nobody is demanding answers before pardoning the conduct and stealing plaintiffs ripe rights to claims.

They are paranoid of having the issue of immunity delved into for exactly the reasons we have been discussing here.

This has the hallmarks of administration language being inserted “quietly” with the preference being that it go undetected. It first appeared as an amendment, several days before being put to the floor of the House, months after the bill was first proposed.

The majority of “immunity” debate is *inserted* into the record, particularly the proponents defense of immunity is 100% inserted. That is, not spoken from the floor, where it has a greater chance of being noticed.

It is good to cite Ben Franklin. Maybe we should also be citing Phineas T. Barnum, because there is a section in this bill, section 10, entitled “Compliance with Court Orders and Antiterrorist Programs.” That actually amounts to a get-out-of-jail-free card for someone who may have leaked classified information.

Now, Gerald Ford gave Richard Nixon a pardon. I am wondering to whom this bill is giving a pardon. Does it give immunity or impunity for certain crimes and misdemeanors? This bill may actually be about someone’s legal problems.

We need to look at this. We need to find out if someone leaked classified information and this bill is going to give them a get-out-of-jail-free card. Read the bill. Take a look at section 10. I want the sponsor to tell me that no one is going to get out of jail free who may have leaked classified information, and no one is going to escape prosecution for certain crimes and misdemeanors once this bill passes.

I want them to tell that to the Congress. Tell us you are not slipping in a clause here where you are trying to get somebody out of jail. Tell me that. Tell us that.

The status of the Safe Ports Act on September 28-29, 2006 was House/Senate Conference Committee. I.e., if the immunity amendment would have been inserted THEN, it would have been new material, not debated in either body before the conference committee, and certainly not in the context of the Safe Ports Act. Truly added “in the dark,” and unfortunately, a not uncommon event.

I see no sign of a parallel Senate amendment in 2006, and there is no retroactive “No cause of action shall lie in any court …” language in S.3931, or any other Senate action from 2006.

I’m checking out EW’s timelines and slipping this 2006 attempt into her timelines to see where the idea of immunity would have had the greatest impact at the time and if there is a stronger import today (new evidence on old issues), thus the louder fight…Just thinking out loud here…

The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, transfer, treatment, trial, or conditions of detention of an alien detained by the United States since September 11, 2001.

That Sept 2001 date was subsequently pushed back to a 1997 date, to correspond with a date of ratification of some part of an international convention. I think the administration made a hasty push for retroactive immunity back to 9/11/2001, then after some research, concluded that it made more sense to attach immunity for cruel and inhuman treatment to an earlier date, coinciding with adoption of standards in the area of cruel and inhuman treatment.

Anyway, I’ll look for signs of McConnell getting the word before September 22nd (I’m sure he did), and it’s a good bet that there was coordination between the House and Senate on introducing the notion of immunity on the respective subjects — a sort of “cover” for the fact that the request/demand originated in the WH, not in Congress.

Heheh. Check S.3886, which was also a MCA/FISA bill, introduced on Sept 11, 2006. It (and S.3861 and S.3901 too) were all swirling around when Senators Warner, McCain, Goober, et al were meeting with the WH on whether or not waterboarding was torture. Lots of action in a few weeks. Anyway, this set of bills also contain retroactivity provisions, to 9/11/2001.

(2) Retroactive applicability.–The amendments made by this subsection, except as specified in subsection (d)(2)(E) of section 2441 of title 18, United States Code, shall take effect as of November 26, 1997, as if enacted immediately after the amendments made by section 583 of Public Law 105-118 (as amended by section 4002(e)(7) of Public Law 107-273).

My review at the time:

However, the notes associated with 18 USC 2441 describe a bit of dithering, including “1997 — Subsec. (a). Pub. L. 105-118, Sec. 583(1), as amended by Pub. L. 107-273 substituted ‘war crime’ for ‘grave breach of the Geneva Conventions’.” The point being that “grave breach” may not be useful as a “weasel” phrase.

The November 26, 1997 date first appears appears in several bills, amendments, etc. forward from about September 15 until the 28th. It wasn’t clear which bill would be used to pass the MCA. The parliamentary procedure was chaotic.

FWIW, backdating to Nov 26, 1997 instead of 9/11/2001 was done to create the legal fiction that the definition of “grave breach” was consistent from 1997 forward, and that 9/11/2001 wasn’t some sort of meaningful “break point” in US interpretation of the term “grave breach.”

(Sept 14) Mr. FRIST. “The President has placed a bill before this body. I introduced it about a week and a half ago. That language is available, and I encourage my colleagues to study that.”

The House version, H.R.6054, introduced by Hunter on Sept 12, 2006, also has 9/11/2001 retroactivity language. The September 15 dated House Report 109-664 – Part 1 notes “The section would also make the amendment apply retroactively to the date of enactment of the War Crimes Act, November 26, 1997. The committee notes that because no person has been prosecuted under the War Crimes Act, this amendment can apply as if enacted on November 26, 1997.” Ten days later, House Report 109-664 – Part 2 stated “Retroactivity will not affect any pending case , since no person has been prosecuted for violations of the War Crimes Act since its initial enactment.”